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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH

CASE NO: CC 26/2014

Date heard: 9 April 2015

Date delivered: 17 April 2015

In the matter between

THE STATE

And

SINDISWA ABIGAIL NDUWANE.......................................................................................Accused 1

MZIKABAWO WALTER DUNJANA..................................................................................Accused 2

BONGANI JOHN JANTJIES...............................................................................................Accused 3

Sentence – accused pleaded guilty to kidnaping and murder – prescribed minimum of life imprisonment for murder – murder premeditated and panned; carried ut in furtherance of common purpose to kill – so-called contract killing – murder procured to claim benefits under funeral policy – no substantial and compelling circumstances established – imposition of life imprisonment not disproportionate – each accused sentenced to life imprisonment .

JUDGMENT

GOOSEN, J.

[1] The accused were charged with conspiracy to commit murder, kidnapping and murder. They pleaded guilty to kidnapping and murder and the charge of conspiracy to commit murder was withdrawn. They were convicted on their respective pleas of guilty. The deceased is Phumla Monica Jim, an adult woman who was 42 years old at the time of her death.

[2] Each of the accused submitted a written statement in explanation of their respective pleas of guilty. The facts set out in those statements were accepted by the prosecution. It is appropriate to briefly recount that explanation here.

[3] Accused 1, whom I shall refer to by her surname, Nduwane, is a 40-year-old woman.  She explained that at the time of the incident she had serious financial problems. She had been working at a local factory producing wiring looms for Volkswagen and she sustained an injury to her shoulder. She was paid on a weekly basis and earned R19.84 per hour. Depending on the number of hours she worked during the preceding week she would earn approximately R500 after deductions. As a result of the injury she only worked full-time during January, February and March 2013. Thereafter she was at home and did not earn any money. She had an operation on her shoulder in June 2013. She thereafter returned to work, but only worked short time. As a result of working only short time she borrowed money in order to make ends meet. One of the persons from whom she borrowed money was Mabuthi, a tavern owner in her area. She would borrow money from him, pay it back and then borrow again.

[4] Shortly before the incident Nduwane was liable to pay back money to Mabhuti. She informed him that she had no money and that she was unable to pay him what was due to him. He insisted that she must pay. During the conversation he enquired from her whether she had any funeral policies. She explained in her statement that it was common practice in the area where she lived for people to take out funeral policies on the lives of others, and often on the lives of a number of people. She told him that she had such a policy and that an amount of R30,000 would be paid out upon the death of one of the persons covered by the policy.

[5] He asked her who was covered by the policy after which she gave him the names of the persons covered. He asked about Phumla Jim, to which she replied that she was an aunt’s friend and not a family member. He then suggested that they must “take my aunt’s friend” and not a family member and that she could pay him the money owed to him when the policy paid out. Nduwane understood from the words “take my aunt’s friend” that she must be killed. She agreed to this plan. She was given a telephone number.

[6] On 18 December 2013 she telephoned the number belonging to a person who was unknown. That person is accused 2, to whom I shall refer as Dunjana, She explained to him that Mabhuti had referred her to him. Dunjana told her that Mabuthi had already spoken to him and informed him about the “job” that needed to be done. He had agreed to do the “job”. According to Dunjana’s statement he was in the company of accused 3, to whom I shall refer as Jantjies. When he received the telephone call the two of them had agreed to do the “job”. Nduwane agreed to pay R20 000 from the insurance payment after the “job” had been done. Dunjana said he knew that he was required to kill a person by the name of Phumla. They then made arrangements to meet at the Spectrum Hotel on the following evening. It was arranged that she would bring Phumla.

[7] On the night of 19 December 2013 Nduwane went to Phumla’s house where she found her in the company of neighbours. She invited her to a “braai”  place where they would go and braai. Phumla agreed and they then left. They took a taxi. On the way Nduwane had telephonic contact again with Dunjana. He explained to her that he and Jantjies were waiting at the Spectrum Hotel for her. She then gave the taxi driver instructions to take them to the Hotel where they were dropped off. While they were walking along Paulus Street Dunjana phoned her and asked her where she was. She told him that they were going to go to Xoliswa’s Tavern. Dunjana and Jantjies, whom she had not met before, joined them. Nduwane had a discussion with Dunjana about where the deceased was to be killed. She and Phumla then went into the tavern where they spent about 20 minutes. Dunjana and Jantjies were waiting outside.

[8] When they left the tavern they were joined by Dunjana and Jantjies. The four of them walked down a Rhelu Street. Phumla suggested that they should take a taxi but since there were none in the area, they continued to walk towards Phumla’s father’s house.  When they got there, no one was home. They then continued walking to Phumla’s grandmother’s house. After walking short distance. Dunjana and Jantjies grabbed hold of the deceased and dragged her into an abandoned building. Nduwane waited outside in the street. After a short while Dunjana and Jantjies emerged from the building and joined Nduwane in the street and they told her that they had done the “job”. She could see that they had blood on their clothes. She assumed that they had stabbed and killed the deceased and that the agreement that they had reached had been carried out.

[9] They walked a short distance to Nduwane’s aunt’s house where Dunjana an Jantjies washed their hands at a tap in the yard. The three of them then left and, as they were walking in the Mabandla Street, a police vehicle drew up alongside them. The police searched Dunjana and Jantjies and then arrested the three of them on a charge of murder. It transpired that a witness had seen what had happened at the abandoned house and alerted the police.

[10] The statements submitted by Dunjana and Jantjies confirm these facts. In respect of the telephone call made to him by Nduwane, Dunjana explains that all he was in the company of Jantjies and after agreeing to commit the murder he explained to Jantjies that they had a “job” to do and could expect payment of an amount of R20,000. In respect of the commission of the murder both Dunjana and Jantjies confirm that they dragged the deceased into the vacant building and that when inside the building Jantjies grabbed hold of the deceased and held her whilst Dunjana stabbed her with a knife that he had in his possession.

[11] Following the conviction of the accused the matter was remanded in order to enable pre-sentence reports to be obtained for purposes of submission in evidence. Those reports were ultimately obtained and were received in evidence by agreement between the parties without the necessity to call the witnesses who had compiled the reports or the persons who had been interviewed for the purposes of preparation of those reports. It was accordingly accepted by both the prosecution and the defence that the facts set out in those reports may be received in evidence. In addition a further report relating to the circumstances of Nduwane’s minor child was submitted by the prosecution and was received in evidence by agreement between the parties. The accused did not testify in mitigation of sentence.

[12] Our society rightly regards murder, when committed for a fee or to secure some financial or economic gain, as a particularly horrifying manifestation of the crime. These so-called contract killings conjure in the mind of ordinary citizens the image of a callous predator who treats human life with utter disdain. It is for this reason that a court, faced with such a crime, will generally be inclined to show little mercy in meting out appropriate punishment. In deciding on what is an appropriate punishment however, it will consider carefully the motive for such a killing.

[13] In S v Ferreira 2004 (2) SACR 454 (SCA) Howie JA, at paragraph [33], said the following:

As to the contract killing aspect, this is unquestionably a feature that in reported cases has been regarded as a severely aggravating circumstance. The moral blameworthiness of the procurer, however, must depend on the motive, and subjective state of mind with which a contract killer is engaged.

And at paragraph [70] Marais JA, in a minority judgment, stated:

It is of course so that the motives which prompt the hiring of contract killers may vary from those which are undeserving of any sympathy whatsoever to those which evoke a great deal of sympathy. And these variations in motive are equally obviously highly relevant to the sentence to be imposed. But after all is said and done, a contract killing for reward is involved. That is, I believe, in the eyes of most reasonable people, an abomination which is corrosive of the very foundations of justice and its administration. While there is clearly room for differentiation of sentences even in contract killings because the degree of repugnancy of the motive in one case may be less than that in another, a court must face the fact that, whatever the motive, a remedy which society rightly regards as an abomination has been unlawfully resorted to by the accused.

[14] So it is in this case, that we must ask what drove the accused to commit this terrible crime. In the case of Nduwane we know only that she found herself in severe financial difficulty. No detailed evidence regarding this was presented, save what was set out in her plea explanation. Nothing was said about the particular social circumstances she found herself in. Nevertheless, we know that she was compelled to seek financial assistance from a micro-lender. Again no evidence was presented about the debt she accumulated or the effect that this had upon her. In argument it was said that she would borrow R1000 or R500 at a time, repay it with interest and then borrow more. The argument pointed to a vicious cycle – a debt trap – out of which the accused could not extricate itself. I must emphasize that the argument was unsupported by evidence save that contained in the plea explanation. I accept however that she found herself in a financially vulnerable position and – possibly – at the mercy of an unscrupulous credit provider who, on the known facts certainly, earned the title of loan-shark.

[15] When Nduwane could not pay, it was this unscrupulous loan-shark who made the suggestion that the deceased should be killed in order to secure a funeral policy payout. At this point, before turning to the accused’s response to the suggestion and what this says about her character and moral blameworthiness, it is appropriate to reflect briefly on Mabuthi’s role in this matter although he is not, surprisingly, before his court. He clearly knew that funeral policies are common in that community and that the general practice is to secure cover for numerous family members and associates on such policies. The apparent ease with which the conversation moved from discussion of the accused’s inability to pay the debt to identification of the policy payout as a source of money is striking. He identified a source of collateral and suggested that it be realised – the fact that realising that collateral involved killing, seems to have caused him no pause for thought. When Mabuthi chillingly suggested that they “take the aunt” Nduwane knew precisely what was intended and she readily agreed. It was as simple as that. The fate of the aunt was sealed. All that was required was to get someone to perform the task and that, involved no more than two telephone calls. The first was a call from Mabuthi to Dunjana, no doubt, simply to alert him to the expected contract call from Nduwane. The other was a call from Nduwane to negotiate the contract.

[16] If the ease with which Nduwane accepted the idea of having someone killed to release her from her debt burden reflects an extraordinary lack of moral compunction, her actions thereafter point to a cold-blooded and callous lack of humanity. Nduwane telephoned Dunjana, a person completely unknown to her, and she negotiated a fee for the “job” to be done. She agreed to meet the killer the following evening and to deliver to him the intended victim. She went to the victim’s house and lured her away under false pretenses of an evening of drinking and socializing. All the while she was in constant discussion with Dunjana refining the plan to execute the murder.

[17] When the two killers, Dunjana and his henchman Jantjies seized the victim and dragged her into an abandoned building, Nduwane stood outside keeping a lookout. When the deed was done they calmly walked away. These actions are deeply shocking. They point to a profound lack of personal morality.

[18] And what of the killers? Dunjana received a call from his friend, Mabuthi, to inform him of a killing that needed to be done. When he received the call from Nduwane he was in the company of Jantjies. There was a quick negotiation and a deal was struck. He casually informed Jantjies that there was a killing to be done for R20 000. Jantjies, unfazed and unflinching, accepted. This casual familiarity with the process suggests that this transaction followed a well-worn path: can it be that this was the first time? We don’t know and no doubt will never know.

[19] The killing itself was brutal. The victim was treated like an animal led to the slaughter. Jantjies, held her by pinning her arms back while Dunjana stood in front of her and stabbed. A report of a post-mortem examination conducted by Dr Anthonie de Beer was admitted, as was a photograph album depicting the scene of the crime. The wounds on the deceased’s body create an image of how she met her death. Held by Jantjies, Dunjana stabbed her about the neck – five wounds to the left side of her neck and still more to the right side of her face. Her right ear almost sliced off. These were not the wounds that killed her.  She died as a result of 2.5 cm long stab wound to the left side of her chest which penetrated her chest cavity resulting in a left haemothorax.  We don’t know how long it took her to die; no evidence was led in this regard. The position in which the body was found however, suggests she may, mercifully, have died quickly. She was dumped facedown and crumpled on the ground. That her last moments must have been terrifying and excruciating is obvious. She had no idea what was coming. She was walking along with her friend, Nduwane, in the company of two young men recently met, completely unsuspecting. And then suddenly without any cause or warning she was set upon and brutally killed.

[20] These are the circumstances of this murder. It was premeditated and planned; it was carried out by the three accused acting in concert with the clear intention to kill the victim for their respective financial gain. It is a murder which in terms of section 51(1) of the Criminal Law Amendment Act 105 of 1997 carries a sentence of life imprisonment.

[21] The question is whether there are any substantial and compelling circumstances present which would entitle this court to impose a lesser sentence or whether, having regard to all of the circumstances a sentence of life imprisonment is disproportionate or unjust.

[22] When a court considers whether there are substantial and compelling circumstances present it has regard to all of the traditional mitigating factors. It considers them in their totality to determine whether, taking into account the nature of the crime and how it came to be committed, such circumstances are present. A court should not depart from a prescribed sentence for flimsy and unconvincing reasons. Even if the court finds that there are no such substantial and compelling circumstances present, it nevertheless asks itself the question whether the prescribed sentence is proportionate to the crime. The second question involves balancing the range of interests, which include the interests of the accused and of the society, in deciding upon an appropriate sentence (cf. S v Malgas 2001 (3) SA 1222 (SCA); S v Vilakazi 2009 (1) SACR 552 (SCA)).

[23] Nduwane is a mother of a 12-year-old son. His life has been fundamentally affected by his mother’s conduct. His rights as a child are impacted. This we know and are readily able to appreciate. A care giver report produced in evidence indicates that, since Nduwane’s incarceration, he is being cared for by a family member and is residing in East London. It appears from the report that he is well cared for. There are sufficient financial resources available to ensure that he will receive the best that can reasonably be offered to him, given the social and economic circumstances in which he finds himself.  The report indicates that an amount of R43 000 was paid out to Nduwane by her former employer. A portion has been invested for his benefit and the balance has been used to pay school fees and living expenses. The child will of course suffer the loss of a mother. His only contact will be that which may be facilitated whilst she serves a prison sentence. That is inevitable however, for there is no other sentence, other than imprisonment, which is appropriate for what Nduwane has done.

[24] Nduwane was the only child born to unmarried parents. She grew up in a stable family environment and her family was closely knit. She completed her secondary schooling and attended a teachers’ training college. She was not able to progress beyond her second year of study because of financial difficulties when her father passed away. She subsequently took up employment as a factory worker. She is unmarried and at the time of the incident was living with her maternal grandmother.

[25] Nduwane has previously fallen foul of the law. She has two previous convictions, one for theft in November 1994 in what appears to be a case of shoplifting and another, more serious, for fraud in April 2011. The latter involved a false claim for Social Security benefits. She was obliged as part of her sentence, which involved payment of a fine alternatively imprisonment, to pay compensation in an amount of R8610. This conviction does not create a favourable impression of Nduwane’s character.

[26] It was argued that Nduwane was in the position of being less morally blameworthy than the initiator of the crime, namely Mabuthi - the loan-shark.  I disagree. Her ready acceptance of the proposal and her conduct in giving effect to it, point to an unscrupulous and morally bereft character. She seized on the solution to her problems as soon as it was suggested. There is nothing in the evidence which paints a picture of a woman driven to extreme conduct because of extraordinary pressures brought on by her financial circumstances. It also was not suggested that she acted under some form or compulsion or threat from Mabuthi.

[27] The circumstances of the deceased and the impact of the offence upon her family was dealt with in the pre-sentence report prepared on behalf of Jantjies. The report indicates that she was 42 years old at the time of her death. She was one of three children and was the last surviving of her immediate family. She had five children. Prior to her death she was unable to care for her children and they were found to be children in need of care and were removed from her care. The report does not indicate their ages nor whether, notwithstanding that they were removed from her care, they had any contact with their mother, the deceased. The report does however indicate that she was well regarded by her neighbours and family members. Her partner is reported as being unable to comprehend how Nduwane could have conspired to do such a terrible thing when she and the deceased had a good relationship.

[28] Dunjana was 28 years old at the time of the commission of the offences. He is the younger of two children born from his parents’ marital relationship. His mother passed away in 2006. The relationship between his mother and father was an unhealthy one. It was characterised by alcohol abuse on the part of his father and frequent conflict. His parents were divorced in 1993 when the accused was about seven years of age. According to the accused’s grandmother his conduct changed significantly after his mother passed away as his mother was the only source of income in the household.

[29] The report indicates that the accused was particularly affected by this loss. He is reported to have attempted to commit suicide by hanging. Shortly after this he became involved in criminal activities in order to provide for himself and his two children, the oldest of which was born in 2008, the youngest in 2012. The criminal activities involved dealing in drugs. The accused has numerous previous convictions for drug offences. According to the SAP69, which was admitted by the accused, he has six previous convictions. The first of these was in January 2008 and involved possession of drugs. He was convicted again in June 2008 for the same offence; in May 2011 he was convicted of theft; thereafter in September, November and December 2012 he was convicted of possession of drugs. The accused is addicted to dagga and mandrax.

[30] He completed grade 10 at school. At the time of the commission of the offence he was not formally employed and earned his keep by selling drugs. He was residing in Langa in an RDP house which had been acquired by his late mother. The area is characterised by a high rate of crime. Drug and alcohol abuse is prevalent. The accused was diagnosed with TB in 2013 and, more recently, with a life-threatening disease for which he receives chronic medication. It is indicated in the report, submitted in evidence on his behalf that he realises that his actions were wrong and that he failed his family, as well as the trust of the deceased’s family by putting them through the trauma of losing a loved one.

[31] Jantjies was 25 years old at the time of the commission of the offences and is one of four children born to a traditional customary marital relationship between his parents which has endured for 35 years. His family circumstances were characterised by poverty. His father was a garden worker and his mother a domestic worker and both had very limited income. The family had minimal access to the resources to meet their basic needs due to their poverty stricken conditions. These circumstances took their toll on the family and, according to the report, both parents abused alcohol and when under the influence of alcohol would fight.

[32] The accused completed his primary school education and then progressed to high school, where he completed grade 9. He left school in the middle of the year while he was doing grade 10. This was due to the severe financial constraints and he wished to assist the family by earning income to support the households’ needs. He did casual work as a gardener. Whilst at a high school he started to experiment with dagga and mandrax. It was as a result of this that he met Dunjana when he would go to his house to buy mandrax from him. The accused has no previous convictions.

[33] It was reported that the Jantjies does not accept responsibility for all of the offences for which he has been convicted. The report contains a statement that he was forced by the police to plead guilty to the offences. This is at odds with the content of his plea explanation. I was informed from the bar that the statement appears to be based upon his misunderstanding as to his responsibility for the commission of the offence when he did not inflict any wounds on the deceased.

[34] Dunjana and Jantjies were hired assassins who cold-bloodedly murdered the deceased for financial gain. Their motivation for participating in the commission of these offences was purely financial. It was argued, on their behalf, that their impoverished circumstances must have served as an inducement to the commission of these offences. It was also argued that they were both under the influence of drugs on the night when the murder was committed. This latter aspect was referred to, somewhat obliquely, in the pre-sentence reports and appears to be based, to a large extent, upon supposition on the part of the author of those reports. In the case of Dunjana, I accept that the evidence suggests that he is a drug addict and that he regularly consumes dagga and mandrax. There is however, no evidence to point to any substantive role that the intake of drugs might have had in the commission of the offences. The circumstances in which Dunjana and Jantjies came to commit the offences are set out in detail above. It is difficult to conceive, given the sequence of events described and the lapse of time between the first telephonic contact between Nduwane and Dunjana and the subsequent murder of the deceased on the following night, that the intake of drugs could have played any role in the sense of reducing the moral blameworthiness of the accused.

[35] As far as the economic circumstances of Dunjana and Jantjies are concerned I accept that they, and in particular Jantjies, grew up in dire socio-economic circumstances and that their upbringing and lives were deeply affected by the ravages of poverty. But I cannot accept that this, in the particular circumstances of this case, serves as mitigation. There is no evidence that this is what caused them to get involved. Dunjana and Jantjies accepted the role of hired assassins without any obvious compunction. They were, as already noted, unfazed and unflinching in accepting the suggestion that they should kill an innocent person in order to secure an insurance payout.

[36] It was argued on behalf of all three of the accused that the fact that they pleaded guilty to the charges was indicative of them taking responsibility for their actions and should be regarded as mitigating. The known facts however, indicate that the accused were arrested immediately after the commission of the offences. According to Nduwane when the other two accused emerged from the abandoned building hey had blood on their clothes. The photographs taken of the scene and of the accused immediately after their arrest indicate that both Dunjana and Jantjies had blood on their clothes. All of the accused were caught by the police as a result of having been seen by a witness and they were, literally, caught red-handed. Their plea of guilty must be seen in this context, and not as being indicative of any sign of remorse. In any event, none of the accused has made any unequivocal statement reflecting that they take responsibility for the actions and that they are genuinely remorseful for what they have done. In the case of Dunjana the statement that he takes responsibility and acknowledges that he let his family and that of the deceased down, does not in my view amount to a genuine expression of remorse and contrition. In the case of Jantjies the contrary appears from the presentence report submitted in evidence on his behalf.

[37] It was also argued on behalf of all three of the accused that the time spent awaiting trial constituted substantial and compelling circumstances. It was common cause that they were arrested on 19 December 2013, and have been in custody since then.

[38] The time spent awaiting trial does not, in and of itself, constitute a substantial and compelling circumstance. It is but one factor to be taken into account when a court considers whether there are, substantial and compelling reasons to depart from a prescribed minimum sentence (see S v Radebe 2013 (2) SACR 165 (SCA) at par [13] and [14]; S v Gcwala (295/13) [2014] ZASCA 44 (31 March 2014)).

[39] In this case the accused have not spent an inordinately long period in detention awaiting trial. I do not consider that the prescribed period of life imprisonment, which is an indeterminate sentence, should be reduced, taking into account the fact that the accused had spent just over a year in custody awaiting trial. That is because I do not consider that substantial and compelling circumstances have been established in this matter.

[40] After careful consideration, I am unable to find when examining the personal circumstances of each of the accused and their respective roles in the commission of these offences, that there are any substantial and compelling circumstances present which would warrant a departure from the prescribed sentence of life imprisonment for the murder. Nor am I able when balancing the interests of society and that of the accused to conclude that the imposition of life imprisonment would be disproportionate and would bring about an injustice.

[41] The accused were each convicted of two offences. The offence of kidnapping was committed in carrying out the planned murder. It warrants a short period of imprisonment which will, in the light of the sentence to be imposed for the murder and by operation of law, run concurrently with that sentence (see s 39(2)(a)(i) of Act 111 of 1998; S v Mashava 2014 (1) SACR 541 (SCA)).

[42] In the result I impose the following sentences:

On the charge of kidnapping:

EACH OF THE ACCUSED IS SENTENCED TO THREE (3) YEARS’ IMPRISONMENT

On the charge of murder

EACH OF THE ACCUSED IS SENTENCED TO LIFE IMPRISONMENT.

G. G. GOOSEN

JUDGE OF THE HIGH COURT

Appearances: Adv. Loots

The State

Adv. Van der Spuy

Accused 1

Instructed by the Legal Aid Board

Adv. Saziwa

Accused 2 and 3

Instructed by the Legal Aid Board

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